003-SLLR-SLLR-2004-V-1-RAJARATNAM-v.-DAYANANDA-DISSANAYAKE-COMMISIONER-OF-ELECTION-AND-OTHERS.pdf
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RAJARATNAMv
DAYANANDA DISSANAYAKECOMMISSIONER OF ELECTIONS AND OTHERSCOURT OF APPEALTILAKAWARDENA.J. P/CAANDWIJERATNE, J.
C.A. 196/2002MAY 5, ANDJULY 8, 2003
Provincial Councils Elections Act, No.2 of 1988, sections 63 and 65(2) -Nominated to Provincial Council by one party though not a member of theparty – Subsequent nomination by another party to contest General Elections
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Rajaratnam v Dayananda Dissanayake, Commissioner of
Elections and others (Tilakawardane. J.)
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– Expelled by first party – Appointment of another nominee by the first party -Validity of the expulsion – Is the order a nullity? – Should the specific remedyunder section 63(1) be resorted to first?
Held:
The petitioner has never been a member of the first party. In terms ofsection 63(1) the expulsion of a member of a political party could be doneby the leadership of the particular party. The party leadership could notformally expel a person who is not a member of the particular party.
The order or decision of an official who had no legal authority to makethe said order / decision in law is not valid and is a nullity and does notexist in the eyes of the law.
It is not compulsory to invoke the jurisdiction laid down in section 63(1)whenever a member of a Provincial Council is expelled from a party ofwhich he is not a member.
PerTilakawardena, J., (P/CA)
“In exercising his powers in terms of section 65(2) the Commissioner need notin every case, question and confirm that a vacancy had arisen when he isinformed that a member had been expelled from a particular party; but in the cir-cumstances of this partitcular case when the petitioner had informed theCommissioner that he was not a member of the first party and therefore powersof his expulsion could not be invoked, it is incumbent upon the Commissioner toinquire into the matter and rectify any error that had been made.”
APPLICATION for a writ of quo warranto.
Cases refered to:
Abeywickrema v Pathirana- (1986) 1 Sri LR 120 at 156
Centre for Policy Alternatives (Guarantee) Ltd., and others v DayanandaDissanayake and others (2003) 1 Sri LR 277
Basheer Segu Da wood v Ferial Ashraff and others (2002) 1 Sri LR 26 at 31
Rajan v S.Kapukotuwa and others CA 665/2002 – CAM 3.6.2002
Sanjeewa Jayawardena with Priyanthi Gunaratne for petitioner.
Lakshman Perera for 3rd respondent.
Saleem Marsoof PC., Additional Solicitor General with Janak de Silva for 1stand 2nd respondents.
Cur.adv. vult
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September 25. 2003TILAKAWARDENA, J.(P/CA)
The petitioner has filed this application seeking a writ of quowarranto requiring the 4th respondent to show by what authority heholds office as Member of the Central Provincial Council anddeclaring the 4th respondent’s election as Member of the CentralProvincial Council null and void. He has also sought a writ of cer-tiorari to quash the said order made by the 1 st respondent, dated23/01/2002 which had been published in the Government Gazette(Extraordinary) bearing No. 1220/20 dated 23/01/2002 which hasbeen produced and marked as P5. Admittedly the petitioner is amember of the Ceylon Workers’ Alliance and had been a memberof the Central Provincial Council since 10/11/2000. A vacancy hadarisen in the said Council and the 1 st respondent in terms of sec-tion 65(2) of the Provincial Councils Elections, Act No.2 of 1988 hadrequested the 3rd respondent namely, the General Secretary of theUnited National Party, to nominate a person and the petitioner hadbeen duly nominated and was declared a member of the CentralProvincial Council. On or about 20th of November 2001 (P2) thepetitioner had been informed by the 3rd respondent that as thepetitioner had been nominated as a candidate of the People'sAlliance at the general election, which was to be held on the 5th ofDecember 2001 without prior approval of the Working Committeeof the United National Party, that the petitioner's membership in theparty had ipso facto ceased. Consequently the 1st respondent byletter dated 22/01/2002 requested the 3rd respondent to fill thevacancy of the membership of the Central Provincial Council as thepetitioner had been expelled from the party. Thereupon the 3rdrespondent nominated the 4th respondent to fill this vacancy andthe 1st respondent had declared the 4th respondent as a memberof the said Provincial Council by a notice published in theGovernment Gazette bearing No. 1220/20 dated 23/01/2002(P5).
The gravamen of the argument of the petitioner in this appli-cation is that the petitioner had never been a member of the UnitedNational Party and therefore could not have been expelled from theparty. Therefore, since the party did not have the powers to expel
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him that such expulsion was a nullity.
Therefore the main contention by the petitioner, which has tobe decided by this Court, is whether the petitioner was or had beena member of the United National Party and if so whether the expul-sion of the petitioner from the party was valid in law.
The Provincial Councils Elections Act, No.2 of 1988 sets outthe procedure for the election of a member to a Provincial Council.Section 65(2) of the said Act states as follows. “If the office of amember falls vacant due to death, resignation or for any othercause, the Commissioner shall call upon the secretary of the rec-ognized political party or the group leader of the independent groupto which the member vacating office belonged, to nominate withina period to be specified by the Commissioner, a person eligibleunder this Act for election as a member of that Provincial Council,to fill such vacancy. If such secretary or group leader nominateswithin the specified period an eligible person to fill such vacancyand such nomination is accompanied by an oath or affirmation, asthe case may be, in the form set out in the Seventh Schedule to theConstitution, taken and subscribed or made and subscribed, as thecase may be, by the person nominated to fill such vacancy, theCommissioner shall declare such person elected as a member ofthat Provincial Council from the administrative district in respect ofwhich the vacancy occurred. If on the other hand, such secretary orgroup leader fails to make a nomination within the specified period,the Commissioner shall declare elected as member, from the nom-ination paper submitted by that party or group for the administativedistrict in respect of which the vacancy occurred, the candidate whohas secured the highest number of preferences at the election ofmembers to that Provincial Council, next to the last of the membersdeclared elected to that Provincial Council from that party or group.The Commissioner shall cause the name of the member asdeclared elected to be published in the Gazette.”.
This section provides for the nomination of a person who iseligible to be a member of the Provincial Council and does not referto the nomination of a member of a political party to which themember vacating office belonged. Accordingly on a plain reading ofthe section it is apparent that it is not necessary to nominate amember of any particular political party in filling a vacancy.
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Another peripheral issue that has to be decided at this stagepertains to the submissions of the respondent made in terms ofsection 63 (1), that if no challenge was made within the period ofone month the member in question ceased to be a member of theProvincial Council by operation of law irrespective of whether thegrounds on which he ceased to be a member of the recognizedpolitical party or independent group is valid or invalid.80
Section 63(1) states “where a member of a Provincial Councilceases, by resignation, expulsion or otherwise, to be a member ofa recognized political party or independent group on whose nomi-nation paper his name appeared at the time of his becoming suchmember, his seat shall become vacant upon the expiration of aperiod of one month from the date of his ceasing to be such mem-ber”. Proviso to section 63(1) reads as follows. “Provided that in thecase of the expulsion of a member of a Provincial Council his seatshall not become vacant if prior to the expiration of the said periodof one month he applies to the Court of Appeal by petition in writ- 9°ing and the Court of Appeal upon such application determines thatsuch expulsion was invalid. Such petition shall be inquired into bythree Judges of the Court of Appeal who shall make their determi-nation within two months of the filing of such petition. Where theCourt of Appeal determines that the expulsion was valid the vacan-cy shall occur from the date of such determination.
What has to be emphasized and understood here is that theword expulsion used in the said provisions contemplates a situationwhere a member of a particular party is expelled from that party.What is significant is that the petitioner has never been a member 100of the United National Party. Indeed the respondent has neitherdenied this fact nor has submitted any material or evidence con-trary thereto. Therefore the party leadership could not possiblyexpel a person who is not a member of that particular political party.
The words connote that the expulsion of a member of a politicalparty could only be done by the leadership of that particular politi-cal party. Accordingly, in terms of the facts relating to this casethere was no decision to be challenged in terms of section 63(1) ascontended by the respondent.
An order or decision by an official who had no legal authority noto make such order/decision is in law not valid and is a nullity and
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does not exist in the eyes of the law. (Sharvananda, C.J. in thecase of Abeywickrema v Parthirana (1) at 156).
Therefore the 3rd respondent had no legal authority to makean order expelling the petitioner from the United National Party. Asclearly in terms of all the facts and circumstances of this particularcase the petitioner was not a member of the United National Party.
The next matter that has been raised for consideration by therespondent is that if this Court grants leave to the petitioner, itwould enable the petitioner to function as a member of the Central 120Provincial Council, when in fact the petitioner is not qualified in lawto be a member of the Central Provincial Council and his namedoes not appear on the nomination papers of the United NationalParty. The respondent has relied on the decision that was reportedin Centre for Policy Alternatives (Guarantee) Limited and another vDayananda Dissanayake and others J2) In this case Justice MarkFernando had held that the secretary’s power to nominate is con-fined to a candidate whose name appeared in the original nomina-tion paper and who secured some preferences at the election.
However what is relevant according to the facts of this case 130under review is that the nomination of the petitioner as a CouncilMember had taken place in November 2000 and that the petitionerwas nominated by the consensus of the United National Party,which fact cannot be inquired into in this application as such is notin issue. It is also relevant to note that the petitioner by letteraddressed to the 3rd respondent had informed that as the petition-er was not a member of United National Party, the question of hisceasing to be a member of the said party does not arise (Vide P3).
This was copied to the 1st respondent. Thus a legitimate expecta-tion was created as to the outcome on the final decision to this 140effect. However no such reply was sent to the petitioner.
On the basis of the above analysis the contention of therespondent that if Court granted relief to the petitioner such wouldbe futile as the petitioner's name did not appear on the nominationpaper of the United National Party, is untenable. Therefore theexpulsion of the petitioner is in the first place a nullity. Therefore thepetitioner cannot be considered as appointed afresh as a memberof the Central Provincial Council. The petitioner merely continues to
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hold office as a member of the Central Provincial Council and theappointment of the petitioner cannot be made an issue in this mat- isoter as it is not relevant to the matters that had been placed beforethis Court.
The Supreme Court judgment relied on by the respondentcannot be made applicable retrospectively. Justice Mark Fernandoin dealing with the objections raised in relation to the futility of grant-ing relief, made it clear that the Court of Appeal judgment is setaside on the grounds of public interest, for if not the Court of Appealjudgment would be regarded as authoritative and binding in respectof all future vacancies in any Provincial Council. In this sense, suchdecision in that case could not be applicable retrospectively and 160would not be relevant to the facts in this case.
The respondent has also made submissions that the petition-er should have resorted to the specific remedy embodied in the pro-viso to section 63(1). In support of this submission the judgment inthe case of BasheerSegu Dawoodv Ferial Ashraff and others <3) at31 has been cited. In that case it had been stated that the petition-er not being a member of the United National Party could not beexpelled from it and similarly, according to the circumstances of thiscase, the petitioner was not a member of the United National Partyand therefore could not be expelled from the party.
In the unreported judgment of A.M.D. Rajan v S. Kapukotuwaand others (4) on similar facts it was held that since the petitionerwas not a member of the United National Party he could not havebeen expelled from the United National Party. It is interesting tonote that it is not compulsory to invoke the jurisdiction laid downunder section 63(1) proviso, whenever a member of a ProvincialCouncil is expelled from a party of which he is not a memberthough it recognizes the remedy embodied under the proviso tosection 63(1). Therefore the order made under section 65(2)declaring the 4th respondent elected, is ultra vires and is void. The iso1 st respondent could not have made such order as the office of thepetitioner has not become vacant in terms of the aforesaid law. Theexistence of a vacancy is a precondition which is necessary for theexercise of the powers in terms of section 65(2). Without such con-dition powers embodied in terms of section 65(2) of the saidProvincial Councils Elections Act, No.2 of 1988 cannot be invoked.
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It is also interesting to note that in exercising his powers interms of section 65(2) of the aforesaid Act the Commissioner ofElections need not in every case, question and confirm that avacancy had arisen when he is informed that a member had been 190expelled from a particular party. But in the circumstances of thisparticular case when the petitioner had informed the Commissionerthat he was not a member of the United National Party and there-fore powers for his expulsion could not have been invoked, it isincumbent upon the Commissioner of Elections to inquire into thematter and rectify any error that had been made. Accordingly, in allthe circumstances set out in this case, this Court finds this is a fitand proper case to issue a writ of certiorari to quash the ordermade by the 1st respondent dated 23/01/2002 published in theGovernment Gazette (extraordinary) bearing No. 1220/20 dated 20023/01/2002 (P5). Therefore, the application of the petitioner seek-ing the aforesaid writ of certiorari is allowed with costs in a sum ofRs. 5000/-.
WIJEYARATNE, J. – I agree.Application allowed.